Com. v. Ellis, K. ( 2020 )

J-S30011-20 & J-S30012-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KASHIF OMAR ELLIS :
:
Appellant : No. 1577 WDA 2019
Appeal from the Judgment of Sentence Entered April 16, 2019
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001880-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KASHIF ELLIS :
:
Appellant : No. 1580 WDA 2019
Appeal from the Judgment of Sentence Entered April 16, 2019
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0000773-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED AUGUST 11, 2020
In these consolidated appeals, Kashif Omar Ellis (Appellant) appeals
from the judgment of sentence imposed after a jury convicted him of first-
degree murder, robbery, criminal conspiracy, aggravated assault, burglary,
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* Former Justice specially assigned to the Superior Court.
J-S30011-20 & J-S30012-20
criminal trespass, recklessly endangering another person, discharging a
firearm into an occupied structure, criminal use of a communication facility,
and possession with intent to deliver a controlled substance (collectively, “the
murder charges”).1 The jury also convicted Appellant, in a separate case, of
intimidation of a witness/victim, and retaliation against a witness/victim2
(collectively, “the intimidation charges”). We affirm.
On July 13, 2013, Appellant orchestrated a robbery with his then-
paramour and co-defendant, Taylor Griffith (Griffith), and Quasim Green
(Green). At Appellant’s direction, Griffith visited the residence of the victim,
Stephen Lamont Hackney (Decedent). While inside the residence, Griffith
texted Appellant, informing him that she saw large quantities of narcotics and
U.S. currency, and that the Decedent was alone and unarmed. Griffith, who
was a Commonwealth witness at trial, testified that she unlocked the back
door to the Decedent’s residence so that Appellant and Green could enter.
Appellant barged into the Decedent’s bedroom and shot him three times,
resulting in his death. Appellant and his co-defendants then stole the cash
and narcotics and fled.
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1 18 Pa.C.S.A. §§ 2502(a), 3701(a)(1)(i), 903(a), 2702(a)(1) and (4),
3502(a)(1), 3503(a)(1)(i), 2705, 2707.1(a), 7512(a); 35 P.S. § 780-
113(a)(30).
2 18 Pa.C.S.A. §§ 4952(a)(1), 4953(a).
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J-S30011-20 & J-S30012-20
The police responded to the scene and discovered the Decedent’s body,
as well as large quantities of cash nearby. After securing and searching the
surrounding area, police seized a Samsung cellphone (Samsung phone), which
had been discarded in the alley behind the Decedent’s residence. The police
obtained a search warrant for the digital contents of the Samsung phone.
Forensic analysis of the Samsung phone revealed that it belonged to Green.
The investigation into the murder went on for several years. During the
investigation, the police utilized a software geo-location mapping program
called CellHawk.3 The investigating officers accessed CellHawk geo-location
data for two separate cell phones that, police determined, were respectively
associated with Appellant and Griffith. The data showed these phones in the
general area of the Decedent’s residence on the night of the murder. It further
showed that both Appellant and Griffith’s phones were in the Philadelphia area
shortly after the murder, which corroborated Griffith’s account. The police
obtained the CellHawk evidence, with respect to both Appellant and Griffith’s
phones, via a court order.
Notably, one of the police officers involved in the investigation was
former Altoona police detective Matthew Starr (Officer Starr). After most of
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3 This program collects historical data from cellular tower “pings” to locate
cellphone users on a given date and time.
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the investigation had occurred, Officer Starr was terminated from the police
force and convicted of fraud in an unrelated matter.4
In July 2017, the Commonwealth filed the murder charges against
Appellant at CR 1880-2017 (No. 1880-2017). The Commonwealth
subsequently initiated a second case against Appellant in May 2018, docketed
at CR 773-2018 (No. 773-2018), charging him with the intimidation charges.5
The trial court joined the two cases.
Appellant subsequently filed an omnibus pre-trial motion (OPT motion).
The OPT motion sought, inter alia, suppression of (1) Appellant’s CellHawk
historical cell site location information; and (2) recordings of inculpatory
telephone calls and letters that Appellant made while incarcerated pending
trial (“the prison calls evidence.”). The trial court conducted two hearings,
after which it denied the OPT motion.
In November 2018, Appellant filed a motion (the recusal motion),
asserting that the entire bench of Blair County, as well as the District
Attorney’s Office, should be disqualified from participating in his trial. He
argued that there was a conflict of interest because Griffith was the daughter
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4 Neither party called Officer Starr as a witness at Appellant’s trial.
5 These charges arose out of Appellant’s threatening to kill Griffith because
she agreed to testify as a Commonwealth witness against Appellant in
exchange for pleading guilty to third-degree murder, and receiving a sentence
of 15 to 30 years in prison.
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of the Blair County Prothonotary/Clerk of Courts, Robin Patton (Prothonotary
Patton). The trial court denied the recusal motion.
On January 3, 2019, four days prior to jury selection, Appellant filed a
motion for a continuance, which the trial court denied. Jury selection
commenced on January 7, 2019. Appellant was shackled during jury selection
and trial. For this reason, Appellant filed a motion for a mistrial, which the
trial court denied. The jury convicted Appellant of the murder charges and
the intimidation charges.
On April 16, 2019, the trial court sentenced Appellant, at No. 1880-
2017, to life in prison without the possibility of parole. At No. 773-2018, the
court imposed an aggregate sentence of 5 to 10 years in prison, to run
consecutively to the sentence at No. 1880-2017.
On April 26, 2019, Appellant filed a timely post-sentence motion for
reconsideration of sentence/new trial. He challenged the trial court’s denial
of his claims raised in the OPT motion and recusal motion. He further asserted
that he should not have been shackled during jury selection, and that the
Commonwealth committed a discovery violation by failing to provide the
defense with certain witness statements prior to trial. The trial court denied
the post-sentence motion by an order and opinion entered on December 2,
2019.
Appellant timely filed notices of appeal at each docket number, followed
by court-ordered concise statements of errors complained of on appeal,
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pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). This Court
consolidated the appeals sua sponte.
In the appeal at No. 1880-2017, Appellant presents nine issues for
review:
I. WAS [APPELLANT] DENIED HIS RIGHT TO DUE PROCESS
AND A FAIR AND IMPARTIAL TRIAL WHEN HE WAS
PARADED IN FRONT OF THE JURY AT JURY SELECTION IN
SHACKLES?
II. WAS [APPELLANT] DENIED DUE PROCESS AND A RIGHT TO
A FAIR AND IMPARTIAL TRIAL WHEN THE TRIAL COURT
REFUSED TO SUPPRESS THE INTERCEPTION OF
[APPELLANT’S] PHONE RECORDS AND WRITTEN
COMMUNICATIONS OBTAINED FROM THE STATE
CORRECTIONAL INSTITUTIONS OF GRATERFORD AND
HUNTINGDON WITHOUT A WARRANT?
III. DID THE COMMONWEALTH COMMIT BRADY[6] VIOLATIONS
IN FAILING TO TIMELY DISCLOSE THE STATEMENT OF
ASHLEY BRUBAKER AND TO TIMELY REVEAL THE
COMMONWEALTH’S KNOWLEDGE OF THE
UNTRUTHFULNESS OF THE STATEMENT OF POTENTIAL
COMMONWEALTH WITNESS KELSEY BERGMAN?
IV. DID THE COMMONWEALTH VIOLATE THE RULES OF
DISCOVERY BY FAILING TO PROVIDE TIMELY NOTICE OF
THE TESTIMONY OF ASHLEY BRUBAKER AND THE
UNTRUTHFULNESS OF THE STATEMENT OF POTENTIAL
COMMONWEALTH WITNESS KELSEY BERGMAN[,] ALONG
WITH FAILING TO PROVIDE NOTICE OF THE EXPERT
TESTIMONY OF AGENT THOMAS MOORE OF THE ATTORNEY
GENERAL’S OFFICE[,] ALL OF WHICH INFORMATION
SHOULD HAVE BEEN REVEALED IN DISCOVERY[?]
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6 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.”).
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J-S30011-20 & J-S30012-20
V. DID THE COURT VIOLATE [APPELLANT’S] RIGHT UNDER
THE CONFRONTATION CLAUSE OF BOTH THE UNITED
STATES CONSTITUTION AND THE PENNSYLVANIA
CONSTITUTION TO CROSS-EXAMINE TRAVIS DENNY[,]
WITH RESPECT TO A LETTER SUBMITTED TO HIS ATTORNEY
BY HIS GIRLFRIEND SEEKING A REDUCTION IN THE
SENTENCE HE WAS SERVING?
VI. DID THE TRIAL COURT ERR IN DENYING A HEARING ON
[APPELLANT’S] FRANKS[ V. DELAWARE, 438 U.S. 154
(1978)] MOTION WITH RESPECT TO THE SEARCH
WARRANTS BASED UPON THE STATEMENTS AND
INFORMATION PROVIDED BY AN UNRELIABLE WITNESS[,]
AS WELL AS THE ACTIONS AND ACTIVITY FROM [OFFICER]
STARR WHO WAS SUBSEQUENTLY CONVICTED AND
SENTENCED ON CHARGES INVOLVING FRAUD?
VII. DID THE COURT DENY [APPELLANT’S] RIGHT TO A FAIR
AND IMPARTIAL TRIAL BY REFUSING TO RECUSE ITSELF
AND/OR RECUSE THE DISTRICT ATTORNEY OF BLAIR
COUNTY WHEN HIS CO-DEFENDANT, TAYLOR GRIFFITH[,]
AND MAIN COMMONWEALTH WITNESS WAS THE
DAUGHTER OF THE PROTHONOTARY AND CLERK OF COURT
OF BLAIR COUNTY?
VIII. WAS [APPELLANT] IMPROPERLY DENIED HIS REQUEST FOR
A CONTINUANCE FILED WITH THE COURT ON JANUARY 3,
2019 AND DENIED BY ORDER OF COURT DATED JANUARY
4, 2019 FILED ON JANUARY 7, 2019[?]
IX. WAS [APPELLANT] DENIED HIS RIGHT TO DUE PROCESS
AND A FAIR AND IMPARTIAL TRIAL WHEN THE
COMMONWEALTH OBTAINED EVIDENCE AS TO PINGING
[O]F … [APPELLANT’S] CELL PHONE THROUGH A COURT
ORDER INSTEAD OF PROPERLY OBTAINING A WARRANT
FOR SAID EVIDENCE AS REQUIRED BY CARPENTER V.
UNITED STATES, 585 U.S. ___, 138 [S. CT.] 2206, 201
LAWYERS EDITION 2D. 507[] (2018)[?]
Appellant’s Brief (1577 WDA 2019) at 6-9 (footnote added, issues ordered).
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J-S30011-20 & J-S30012-20
In the appeal at No. 773-2018, Appellant raises three issues. These
issues are identical to and correspond with three of the issues that Appellant
presents above; namely, issues 1, 7 and 8.7 See Appellant’s Brief (1580 WDA
2019) at 6. Accordingly, we will address those issues together.
In his first issue, Appellant argues that he was deprived of his right to a
fair trial, and his presumption of innocence, where he was “paraded” in front
of the jury while restrained with shackles. Appellant’s Brief at 19-24.
Appellant contends that the trial court thus erred in denying his motion for a
mistrial. Id. at 19.
It is well settled under common law and the Constitution
that, part and parcel of the concept of a fair trial, is a defendant’s
right to be permitted to appear free from shackles or other
physical restraint – this right, however, is not absolute.
Commonwealth v. Jasper, 610 A.2d 949, 955 (Pa. 1992).
Circumstances that have justified the use of restraint include
where a defendant disrupts the proceedings, where there is a
danger of escape, and where the court believes that an
unrestrained defendant may attack others. Id. Proper security
measures are within the sound discretion of the trial court, and,
thus, will not be disturbed absent an abuse of that discretion.
Commonwealth v. Patterson, 308 A.2d 90, 94 (Pa. 1973).
In the Interest of F.C. III, 2 A.3d 1201, 1222 (Pa. 2010) (citations
modified). Additionally, “where the trial evidence shows that a violent
defendant was incarcerated at the time of trial, no prejudice occurs even when
restraints are visible to the jury.” Jasper, 610 A.2d at 955.
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7 Citations to Appellant’s arguments for these issues reference Appellant’s
Brief at 1577 WDA 2019.
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J-S30011-20 & J-S30012-20
The trial court rejected this issue on the basis that:
(1) Appellant failed to establish that the jury actually saw him in
restraints at any point;
(2) Even if the restraints were visible, the jury already knew that
Appellant was incarcerated by other information, and thus, he
suffered no prejudice; and
(3) In light of Appellant’s numerous misconducts in pre-trial
incarceration, his threatening to kill a Commonwealth witness,
and his unruly courtroom behavior, it was necessary to place him
in restraints to ensure safety and courtroom order.8
See Opinion and Order, 9/20/19, at 20-22. Upon review, we incorporate
further the trial court’s reasoning, which is supported by the law and the
record. See id. In so doing, we note that during pre-trial proceedings, the
trial court expressly warned Appellant that his threatening and unruly conduct
could result in him being restrained during trial. See N.T., 3/23/18, at 7;
N.T., 7/30/18, at 35-36. In addition, during jury selection, Appellant was
dressed in civilian clothing, his right hand was free, and the defense table was
equipped with a “skirt”, which blocked the jury from seeing anything below
Appellant’s waist. N.T., 1/7/19, at 20. Finally, the court stated that it would
have been willing to issue a curative instruction to the jury concerning
restraints and/or Appellant’s incarceration, but defense counsel did not
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8 While Appellant was incarcerated in the Blair County Prison awaiting trial, he
threatened to harm Griffith and prison personnel. In pre-trial proceedings,
the trial court warned Appellant that if he continued this conduct, the court
would have no choice but to shackle him in further court proceedings.
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J-S30011-20 & J-S30012-20
request an instruction. See id. at 10-15. We therefore find no merit to
Appellant’s first issue.
In his second issue, Appellant argues that the trial court erred by
depriving him of a fair trial when it refused to suppress the prison calls
evidence; Appellant claims the evidence was the product of an unlawful search
and seizure. See Appellant’s Brief at 27-31.
The trial court likewise addressed this claim in its opinion, summarizing
the relevant law concerning the admissibility of such evidence, and
determining that denial of the suppression request was proper because:
(1) The court initially denied Appellant’s motion to suppress the
evidence “without prejudice” to Appellant to renew and further
develop the claim, but he never did so;
(2) Appellant never objected to the admission of this evidence at
trial; indeed, he actually consented to the entire recording of
Appellant’s calls from prison being played to the jury; and
(3) Appellant failed to articulate any reasonable expectation of
privacy that he had concerning these communications.
See Opinion and Order, 9/20/19, at 16-19. Again, the court’s reasoning is
supported by the record and law, and we agree with its conclusion. We further
note that the Commonwealth’s interception of Appellant’s prison phone calls
was permitted under Pennsylvania’s Wiretap Act, which provides in relevant
part that it is not unlawful for:
an investigative officer, a law enforcement officer or employees of
the Department of Corrections for State correctional facilities to
intercept, record, monitor or divulge any telephone calls from or
to an inmate in a facility [provided that delineated conditions are
met].
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18 Pa.C.S.A. § 5704(13). Appellant, as a state inmate, was given an
automated warning that any inmate telephone call could be monitored or
recorded. Accordingly, we reject Appellant’s second issue. See id.
We address Appellant’s third and fourth issues together because they
are related. Appellant claims the Commonwealth violated Brady, supra, by
failing to alert him to material untruths in the police statement given by
“proposed” Commonwealth witness Kelsey Bergman (Bergman), and to give
him advance notice of her testimony.9 See Appellant’s Brief at 31-34; 37-38.
Appellant argues that this information would have assisted his defense theory
and provided him an opportunity to undermine the credibility of Griffith’s
testimony. Id. at 33-34. Appellant further contends that the Commonwealth
committed a second Brady violation concerning Ashley Brubaker (Brubaker),
who testified as a Commonwealth witness and spoke with police on the night
of the murder. Id. at 34, 37-38.
Appellant’s claim presents a question of law; our standard of review is
de novo and our scope of review is plenary. Commonwealth v. Mullins, 918
A.2d 82, 84 (Pa. 2007). To prove a Brady violation, a defendant must show:
“(1) the prosecutor has suppressed evidence; (2) the evidence, whether
exculpatory or impeaching, is helpful to the defendant; and (3) the
suppression prejudiced the defendant.” Commonwealth v. Tharp, 101 A.3d
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9 Neither party called Bergman as a witness at trial.
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736, 747 (Pa. 2014) (citation omitted). “Conversely, the mere possibility that
an item of undisclosed information might have helped the defense, or might
have affected the outcome of the trial does not establish materiality in the
constitutional sense.” Commonwealth v. Dennis, 17 A.3d 297, 308 (Pa.
2011) (citation omitted). The burden of proof is on the defendant to
demonstrate that the Commonwealth withheld or suppressed material
evidence. Commonwealth v. Cam Ly, 980 A.2d 61, 75 (Pa. 2009); see
also id. (stating that the “prosecutor is not required to deliver his entire file
to defense counsel, but only to disclose evidence favorable to the accused
that, if suppressed, would deprive the defendant of a fair trial”) (citation
omitted).
Appellant’s claims are unavailing. Concerning Bergman, the
Commonwealth never called her to testify. Appellant had an opportunity to
present her testimony; however, he declined to do so. Moreover, Appellant
fails to identify Bergman’s alleged “untruths,” and advances only a general
claim of a Brady violation. See Commonwealth v. Tielsch, 934 A.2d 81,
93 (Pa. Super. 2007) (holding that undeveloped claims will not be considered
on appeal). Finally, the record supports the Commonwealth’s response that
it: (1) provided Appellant with Bergman’s police statement during discovery;
and (2) spoke with Appellant’s defense counsel prior to trial and pointed out
the discrepancies in Bergman’s statements. See Response to Post-Sentence
Motion, 8/27/19, at 10; see also id. at 11 (asserting that the inconsistencies
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in Bergman’s statements had nothing to do with Appellant because she was
not present at the Decedent’s residence when the murder occurred).
Regarding Appellant’s second Brady claim implicating Brubaker,
Appellant raises this claim for the first time on appeal; accordingly, it is
waived. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the
first time on appeal); see also Commonwealth v. Melendez-Rodriguez,
856 A.2d 1278, 1288 (Pa. Super. 2004) (en banc) (“[a] party cannot rectify
the failure to preserve an issue by proffering it in response to a Rule 1925(b)
order.”) (citation omitted). Additionally, Appellant’s counsel did not object to
the introduction of Brubaker’s testimony or assert any unfair surprise, even
after an offer of proof by the prosecutor. See N.T., 1/29/19, at 138-39.10 We
discern no record support for Appellant’s claim that the Commonwealth
possessed materials documenting Brubaker’s statements that were not
provided in discovery.
Finally, in connection with Appellant’s fourth issue, he merely asserts,
in two sentences, that the Commonwealth committed a third Brady violation
by failing to provide the defense advance notice of the testimony of Agent
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10 The record reflects that there was no formal police interview of Brubaker
until the time of trial, on January 29, 2019, and defense counsel thoroughly
cross-examined Brubaker about her statements. See N.T., 1/29/19, at 138-
39, 156-63.
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Thomas Moore (Agent Moore) of the Attorney General’s Office.11 Appellant’s
Brief at 38. However, because Appellant has failed to develop this claim in
any meaningful fashion, we are precluded from considering it. See Tielsch,
supra; see also Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super.
2014) (stating that mere issue spotting without analysis or legal citation to
support an assertion precludes appellate review of a matter).12 Appellant’s
third and fourth issues do not merit relief.
In his fifth issue, Appellant asserts that the trial court committed
reversible error by precluding his counsel from cross-examining
Commonwealth witness Travis Denny (Denny), who was Appellant’s former
cellmate.13 See Appellant’s Brief at 38-41. Specifically, Appellant argues that
he was deprived of his right to confrontation concerning a certain letter that
Denny allegedly had “knowledge of”;14 the letter purportedly expressed
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11The Commonwealth presented Agent Moore as an expert witness regarding
the meaning of certain phrases Appellant used in telephone calls he placed
while incarcerated.
12 Even if Appellant had properly developed this claim, we would have
concluded that it lacks merit for the reasons set forth in the trial court’s
opinion. See Opinion and Order, 12/2/19, at 19-20 (stating that Agent
Moore’s expert testimony was not a surprise to the defense where the
Commonwealth filed of record a document that outlined his testimony).
13Denny testified that he was incarcerated with Appellant in 2015, when
Appellant confessed to him that he shot someone named Steve and stole his
money.
14 Denny’s girlfriend authored this letter and mailed it to Denny’s attorney.
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Denny’s request for a reduced sentence in exchange for his testimony at
Appellant’s trial. See id. at 38, 40.
The standard of review applicable to this question of law is de novo.
Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa. Super. 2017). The trial
court has once again capably addressed Appellant’s issue, citing applicable
law, and determining that Appellant was not deprived of his right to confront
Denny where:
(1) Appellant’s counsel, in fact, attacked Denny’s credibility and
motive for testifying against Appellant;
(2) Denny did not author the letter; and
(3) The trial court did not bar Appellant from seeking to admit the
letter via the testimony of its author.
See Opinion and Order, 9/20/19, at 23-25. The trial court’s reasoning is
supported by the record and law, and we agree with its determination; thus,
we affirm on this basis. See id.
In his sixth issue, Appellant contends that the trial court erred in denying
his request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154
(1978). Appellant argues that he should have been permitted to “explore the
issues which resulted in [Officer] Starr’s termination” and conviction, where
Officer Starr was the affiant of the affidavit of probable cause for the Samsung
cellphone belonging to co-defendant Green.15 Appellant’s Brief at 41-43.
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15 Appellant joined in Green’s omnibus pre-trial motion for a Franks hearing.
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The Pennsylvania Supreme Court summarized the United States
Supreme Court’s holding as follows:
[Franks] addressed whether a defendant has the right, under the
Fourth and Fourteenth Amendments, to challenge the truthfulness
of factual averments in an affidavit of probable cause. The Court
held where the defendant makes a substantial preliminary
showing the affiant knowingly and intentionally, or with reckless
disregard for the truth, included a false statement in the affidavit,
the Fourth Amendment requires a hearing be held at the
defendant’s request. The Court emphasized the defendant’s
attack on the affidavit must be “more than conclusory and must
be supported by more than a mere desire to cross-examine”; the
defendant must allege deliberate falsehood or reckless disregard
for the truth, accompanied by an offer of proof. If the defendant
meets these requirements, but the remainder of the affidavit’s
content is still sufficient to establish probable cause, no hearing is
required. If the affidavit’s remaining content is insufficient, a
hearing is held, at which the defendant must establish, by a
preponderance of the evidence, the allegation of perjury or
reckless disregard. If he meets this burden, the affidavit’s false
material is disregarded; if its remaining content is insufficient to
establish probable cause, the search warrant is voided, and the
fruits thereof are excluded.
Commonwealth v. James, 69 A.3d 180, 188 (Pa. 2013) (citations omitted).
Essentially, Appellant claims that because Officer Starr committed fraud
in an unrelated matter, he may have committed fraud in Appellant’s case.
This claim is unavailing. The Samsung phone belonged to Green, not
Appellant, and Appellant asserted no possessory interest in it. Appellant never
requested a Franks hearing relative to the probable cause affidavit.
Moreover, Appellant’s claim is undeveloped; he fails to reference any
statements in the affidavit he contends to be purportedly false. See James,
supra (emphasizing that a defendant’s Franks attack on an affidavit must be
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more than conclusory, and that the defendant must put forth a “substantial”
preliminary showing that the affidavit contains falsehoods); Commonwealth
v. Iannaccio, 480 A.2d 966, 969 n.1 (Pa. 1984) (holding that bald,
conclusory statements are insufficient to rise to the level of a substantial
preliminary showing under Franks).
In his seventh issue, Appellant argues that the trial court erred in
denying his recusal motion. See Appellant’s Brief at 45-52. Appellant
contends that the family relationship between Griffith and Prothonotary Patton
created a conflict of interest implicating the Blair County District Attorney’s
Office and the entire bench of Blair County. See id. According to Appellant,
Patton, who was not a witness at Appellant’s trial, had a “vested interest” in
the outcome. Id.
We review a claim challenging the denial of a recusal motion for an
abuse of discretion, and our review is “exceptionally deferential.” In re L.V.,
209 A.3d 399, 415 (Pa. Super. 2019).
We recognize that our trial judges are honorable, fair and
competent, and although we employ an abuse of discretion
standard, we do so recognizing that the judge himself is best
qualified to gauge his ability to preside impartially. A trial judge
should grant the motion to recuse only if a doubt exists as to his
or her ability to preside impartially or if impartiality can be
reasonably questioned. In order to prevail on a motion for
recusal, the party seeking recusal is required to produce evidence
establishing bias, prejudice or unfairness which raises a
substantial doubt as to the jurist’s ability to preside impartially.
Id. (citations omitted).
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We also review the denial of a motion to disqualify a prosecutor for an
abuse of discretion. Commonwealth v. Sims, 799 A.2d 853, 856 (Pa. Super.
2002). A district attorney should be disqualified where “an actual conflict of
interest affecting the prosecutor exists in the case.” Commonwealth v.
Eskridge, 604 A.2d 700, 702 (Pa. 1992). However, a mere allegation or
appearance of impropriety or animosity is insufficient to establish an actual
conflict of interest. Sims, 799 A.2d at 857.
In support of his claim, Appellant primarily relies on two decisions,
Eskridge, supra, and Comm. Ex rel. Amor v. Amor, 398 A.2d 173 (Pa.
Super. 1979) (en banc). See Appellant’s Brief at 49-51. However, both cases
are readily distinguishable. See Eskridge, 604 A.2d at 701-02 (holding that
an actual conflict barring prosecution existed where the county district
attorney’s law firm represented a car accident victim in a personal injury
action previously instituted against the defendant, and the accident victim
would be a witness in the same defendant’s separate criminal case); Amor,
398 A.2d at 174 (holding that recusal of the entire county bench was required
where a woman who was remarried to a common pleas judge of that county
would have to appear before one of her husband’s judicial colleagues in a child
support action initiated by the woman’s ex-husband).
There is no legal authority for the proposition that when a biological
relative of a county row officer is called as a witness, the district attorney and
entire bench of that county must remove themselves from the case. See,
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e.g., Commonwealth v. Lutes, 793 A.2d 949, 956-57 (Pa. Super. 2002)
(holding that the trial court did not err in denying a motion to disqualify the
district attorney’s office and no conflict of interest existed where the victim
was a county commissioner).
Furthermore, during jury selection, the trial court informed the jury of
the family relationship between Griffith and Prothonotary Patton. N.T.,
1/7/19, at 69-70. The court inquired as to whether this fact would have any
impact on their ability to be fair and impartial. Id. No juror responded that
it would, and Appellant’s counsel made no further inquiries. Id. The trial
court has also considered testimony from Blair County First Deputy
Prothonotary Vicky Claar about any conflict of interest. Ms. Claar stated that
steps were taken to insulate Prothonotary Patton from any involvement with
Appellant’s case and any issues related to Griffith, and averred that no conflict
of interest existed. See N.T., 8/7/18, at 27-34. Moreover, Appellant concedes
that he “is not challenging any personal impropriety on the part of the [trial]
court or the District Attorney’s Office”; Appellant’s Brief at 48. Upon review,
we discern no evidence to support a finding of bias, prejudice or unfairness.
See, e.g., Opinion and Order, 9/20/19, at 13 (explaining that the trial court
had no social and minimal professional contacts with Prothonotary Patton).
Finally, to the extent Appellant emphasizes the plea deal that the District
Attorney’s Office offered Griffith in exchange for her testimony at Appellant’s
trial, see Appellant’s Brief at 46-48, this is a routine occurrence and function
- 19 -
J-S30011-20 & J-S30012-20
of the prosecution’s authority, and there is no evidence indicating that the
prosecution was partial. Accordingly, Appellant’s seventh issue does not merit
relief.
In his eighth issue, Appellant contends that the trial court abused its
discretion in denying his motion for a continuance filed four days prior to jury
selection. See Appellant’s Brief at 53-55. According to Appellant, his defense
counsel:
needed further investigation of various matters which was
exemplified by what occurred at the trial with respect to the
introduction of testimony of Ashley Brubaker, the purported false
statements given by Kelsey Bergman[,] and the previous
undisclosed testimony of the expert witness, Agent Thomas
Moore.
Id. at 55.
We recognize:
Appellate review of a trial court’s continuance decision is
deferential. The grant or denial of a motion for a continuance is
within the sound discretion of the trial court and will be reversed
only upon a showing of an abuse of discretion. … Discretion is
abused when the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will, as shown by the evidence or the record.
Commonwealth v. Brooks, 104 A.3d 466, 469 (Pa. 2014) (citation
modified). Trial judges “necessarily require a great deal of latitude in
scheduling trials. Not the least of their problems is that of assembling the
witnesses, lawyers, and jurors at the same place at the same time, and this
burden counsels against continuances except for compelling reasons.”
Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super. 2013) (citation
- 20 -
J-S30011-20 & J-S30012-20
omitted); see also Commonwealth v. Antidormi, 84 A.3d 736, 745-46 (Pa.
Super. 2014) (stating that an appellant “must be able to show specifically in
what manner he was unable to prepare for his defense or how he would have
prepared differently had he been given more time. We will not reverse a
denial of a motion for continuance in the absence of prejudice.”). To
determine whether a trial court erred in denying a continuance request, “we
must examine the circumstances present in the case, especially the reasons
presented to the trial court for requesting the continuance.” Sandusky, 77
A.3d at 672.
The case against Appellant was initiated in July 2017. Appellant filed
the motion for continuance approximately 1½ years later, and just four days
prior to jury selection on January 7, 2019. The record shows that the trial
court had: (1) considered numerous pre-trial motions filed by Appellant; (2)
previously granted several other continuances requested by Appellant; (3)
ensured that discovery was completed; and (4) appointed an expert witness
and an investigator to assist Appellant’s defense. Additionally, trial had
previously been delayed after Appellant fired his first counsel and chose to
proceed pro se, but eventually had new counsel appointed to represent him.
Further, Appellant’s defense counsel was informed in October 2018 that
the case would proceed to trial in late January 2019. See N.T., 10/9/18, at
43-44. Notably, on November 27, 2018, the following exchange occurred
between the trial court and defense counsel:
- 21 -
J-S30011-20 & J-S30012-20
BY THE COURT: … I can resolve [any outstanding matters] for
this matter to go to trial January 28th[, 2019]. It is two full
months. …
[Defense counsel]: I am okay with January 28th.
N.T., 11/27/18, at 113 (emphasis added).
The record supports the trial court’s statement that there “was no
presentation to the court, nor did it appear to the court prior to trial, that
counsel for [Appellant] felt he was unprepared for trial.” Opinion and Order,
9/20/19, at 34. Finally, we discern no record support for Appellant’s claim
that he was prejudiced by the court’s refusal to afford him yet another
continuance, especially one requested so close to trial. See, e.g., Antidormi,
84 A.3d at 746 (holding that the trial court properly denied the defendant’s
fifth request for a continuance, made on the first day of trial, which was based
upon nothing more than a bald allegation by defense counsel of insufficient
time to prepare). Accordingly, the trial court acted within its discretion in
denying Appellant’s request for a continuance.
In his ninth and final issue, Appellant contends that the trial court
deprived him of a fair trial by permitting the Commonwealth to introduce the
CellHawk historical cell site location information (CSLI) for his phone without
first obtaining a search warrant pursuant to Carpenter, 138 S. Ct. 2206. See
Appellant’s Brief at 25-26. The United States Supreme Court held that, absent
a specific exception to the warrant requirement, law enforcement must first
- 22 -
J-S30011-20 & J-S30012-20
obtain a search warrant supported by probable cause in order to obtain CSLI
from wireless service providers. Carpenter, 138 S. Ct. at 2221.
In reviewing Appellant’s claim:
our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is limited to determining whether
the factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. We are
bound by the suppression court’s factual findings so long as they
are supported by the record; our standard of review on questions
of law is de novo. Where, as here, the defendant is appealing the
ruling of the suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence for the defense
as remains uncontradicted.
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations
omitted).
The trial court concluded that Appellant waived this issue because he
failed to timely raise a claim implicating Carpenter prior to his post-sentence
motion. See Opinion and Order, 9/20/19, at 25-32; see also id. at 32-33
(opining that even if the claim was preserved, it lacks merit because any error
in admitting the CSLI evidence was harmless given the totality of the other
overwhelming evidence of Appellant’s guilt). We agree, as the rationale is
again supported by the record and law. Therefore, we affirm Appellant’s final
issue on this basis. See id. at 25-33.
Judgment of sentence affirmed.
- 23 -
J-S30011-20 & J-S30012-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2020
- 24 -
Circulated 07/16/2020 02:12 PM
IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA,
1880 CR 2017
v. 0773 CR 2018
N
KASHIF OMAR ELLIS, c:>
DEFENDANT,
:
- ..
ELIZABETH A. DOYLE PRESIDING JUDGE
PETER WEEKS, ESQ. COUNSEL FOR COMMONWEALTH
NICHOLE SMITH, ESQ.
R. THOMAS FORR, JR. COUNSEL FOR DEFENDA�T
'
I�
Opinion and Order DEC 2 2019
·l hj
I
Introduction Pn '
d!L
"'
And now, this day of September, 2019, before the court are the Post- �
Sentence Motions filed by the Defendant, Kashif Omar Ellis, ("Ellis") on April 26, 2019.
On July 31, 2019, the court granted an extension to decide the post-sentence motions.
Memoranda were received from the parties, and the matter is ripe for decision.
Applicable Law
The court will briefly address the applicable law governing post-sentence motions
prior to listing Eiiis's specific issues. Post sentence motions are governed by
Pennsylvania Rule of Criminal Procedure 720 (B) (1), which provides:
(B) Optional Post-Sentence Motion.
(1) Generally.
(a) The defendant in a court case shall have the right to make a post-
sentence motion. All requests for relief from the trial court shall be stated
1
s
with.specificity and particularity, arid shall be.cortsolidated in the post-
sentence rr1otion,which may include:
(i) a motion -ch�llenging the validity of a plea· of ,guilty or nolo
contendere, o.r the denial of a motion to withdraw a plea of g·u_ilty or
nolo contend ere;
(ii) a motion-for judgment of acquittal;
(iii) a motion in arrest of juclgrnent;
{iv) a motion tor a new trial; and/or
(v) a motion tq modify sentence.
Pa. R Crim; P. 720 (B} (1}
Pa. R. Crim .. P. 720 also states that issues raised before or during trial shall. be
deemed preserved for appeal whether or not the defendant elects to. file a post .sentence
motion on those issues. Pa: R. Crim. P. 720 (B) (1) (c), Accordingly, a waiver argument
.appropriate for appeal need not necessarily be raised before thecourt or decided by the.
court on the post-sentence rnonons: but since the Commonweaith has alieged waiver as
part of its argument; thecourt will address whether issues raised. by the defendant in his
post sentence motions were.raised before or during trial.
Substance of Post..Sentence Motions
Ellis'-s Post-Sentence Motion is entitled broadly In two sections, "Motion for
Reconsideration and Modification of sentence" and "Motion for Reconsideration of
Sentence, Arrest of.Judgment and a New Trial.1i DEFENDANT'S. POST.SENTENCE. MOTION,
4/26/19, p. 1 (unpaginated), The.first.sectlon, entitled "Motion for Reconsideration and
Modificatkm ofSentence/·{Motion I), contains five ('5) subparagraphs that generc:1.lly recite
the procedural history of the case. lo. The second. section .entitled. "Motion for
Reconsideration of sentence, Arrest ofJudgment and a New Trial" {Motion 11), is divided
into eleven (11) lettered subparaqraohs. ID;, pp. t..3. Addressrng Motion a first, ten of
2
these.subparaqraphs contain substantive requests for relief. Ellis does not specify what
1
relief in each of-these numbered paragraphs. he is requesting (i":e. a new trial, the arrest
of the jury's judgment, ·and/or a reconsideration of his sentence). Moreover, none of the.
allegations of error concern Eiiis's sentence. The majority of _the$e motions describe
alleged errors made by the, court pre:.trial, ratherthan allegations of error during the trial.
None of the issues raised involve. questions of weight and/or sufficiency of the evidence
presented bythe --Commonwealth at trial. Normally, in a pQst sentence motion the
allegation would bethat theJury rendered the verdict butJhat as.a matter a,f law the
evidenc.e. was not .sufflclent, or sufficient but clearly a·gainst the weight or
incredible such that the court should .set aside. the jury's verdict� Most of Eiiis's
motions begin with art tndlcatlon that Ellis ''was denied. a fair trial." S.uoh ·an averment is
indicative of a motion for a new triai, not a motion in arrest of]udQmenL As. mentioned,
none of the motions indicate tile court should reconsider or rnodity Ellis's sentence,
despite being -stYl.ed in partas a "Motion for RecOnsic-;leratioh otsentence. ,. "As a result,
it is difficult for the court to address Eiiis's claims usihg the proper
. �gal
. 'standard,
. . or to
give him relief.
The specific. issues raised by Ellis in htsPcst-Sentence Motion are as follows:
a. Your Petitioner believes and therefore avers that he· was .denied a
fair trial by the.jury of his peers in that the Blair County Court and the
DistrictAttorney's Office should have reoused itself because of the
appearance Of impropriety in that the Oommonwealth's chiefwitness
�gainstlhe Defendant in this matter was Taylor Griffith, the.dauqhter
:of Robin. G. Patton, the Prothonotary and Clerk .of Courts of Blair
County for the reasons 'Set forth in your Petltioners (sic) Pre-Trial
Motion with the hearing held on November 27, 2018.
b. That your Petitioner believes and therefore .avers tlie .Court erred in
denyfng his Franks motion in that the warrants issued to obtain
1 Subparagraph k tsa request for transcripts,
3
evktence· of .the electronic surveillance in this matter were obtained
ln violation of. [Franks v. Delaware] in that the affidavit was obtained
using, ·knowing or with reckless disregard to the truth of the
statements· or information provided by. unreliable Wfu.'iesses . and
based upon the actions and the activity of the officer who scuqhttne
warrant namely Sergeant Matthe.w Starr, an Attocna · Police
Oepartrr,eiit. detective who was subsequently convicted and
sentenced on charges involving fraud.
c. TheDefenoant was denied the right to a fair and impartial trial where.
lhe 'Commonwealth failed to advise petitloner/defendant that the
Cornrnonwealth had knowledge of the untruthfulness of· the
purported statement of potential Commonwealth wtth.$ss, Kelsi
Bergrh_arin., until the time of trial in violation of Bradyv. Maryland ..
d. The Defendant was denied the right to a. fair and impartial trial where
·this honorable court refused to suppress or limit the interceptions of
his phone records and written communications ·obtained- from the
s·tate.Corre.ctional Institution at Graterford and the .State=Correciional
Institution cjl Huntingdon which the Commonwealth used .to present
in essence, a confession given by the Defendant d_uring. the
Commonwealth's closing argurrientto thejury.
e. a
The �fendant was denied the right to .fair and lmpartial trial where
the Commonwealth failed to. provide the Petitioner/Defendant with
discovery of all the expert reports, spe,cifi¢ally where the
Commonwealth called a witness from the Pennsylvania Office of
Attorney General to explaincertain language and words purportedly
used bythe Defendant withput the Commonwealth _providing said
intormatlor. through discovery before commencement of theJurytrial.
The court erred when it denied the Defendant's. requestfor a mistrial
whe�� the jury pool was able to observe the O:efendanf in shackles
with respect to this. hands and feet lmrnediately before and during
jury selection.
.g. Th_e. Defendantwas denied the right to a fair and impartial trial where
ttie Commonwealth failed to provide the statements of
Commonwealth witness, Ashley Brubaker, prior to the tri�I so as to
permit the Defendant to. investigate said .staternents.
h. The Defendant was denied the right to a fair and ·impartial. trial When
the :Defendant was denied his rights under the oonrrcntatton Clause
of both the United States Constitution and Pennsylvania Oonstituflon
4
..... ·······-·····- ---------
to- cress-examine a Commonwealth. witness, Travis De.nny, with a
letter which would have been used for impeachment purposes.
i. The __D_efendantW.as denied the right to a fair and itnpart,al_trial where
the Commonwealth obtained evidence as to pingin_g of the
Defendant's cell phone through a court .order insteac qf properly
obtai.ni.ng a warrant for said -evidence as required ·by Carp.enter v
U.S .. [citation omitted]. .
j. The Defendant was denied the rightto a fair and trnpartial .trial Where
the· tri.�! court imprpperly denied a continuance request by the
Defend.ant for the purpose -of further reviewin_g and in.vestigating
discovery provided by the Commonwealth to more properly craft a
defense to· each of the charges at the above-captioned criminal
action numbers.
lo., pp. 1-3. (some words and phrases omitted). Prior to add res.sing each of these. issues,
the Court shall briefly discuss the procedural history ofthis case «,
PROCEDURAL.HISTORY
On Februaryt, 2019, Ellis was convicted of Criminai Homicide- of the First-Degree
and all othercharges filed. to case number CP-07-CR-0001880-20.17-. after a five(�) day
jury-frial. On the same day, Ellis was convicted of Retaliation Aga.inst··a Witness and all
other chargesJiled lo case number CP-07.:CR-OQ00773-201.8. On April, 16, 2019, the
court sentenced Eilis to life in prison without the possibility of parole followed by twenty-
three (23.5) to forty-seven (47) years of incarceration. On April ·26,.201_9, Ellls filed Post--
Sentence Motions .. On _July 311 2019., the court. granted Ellis;s requestto extend the time
for deciding the motions.. On September 5., 2.019. the-court entertained argument on the
motions. Ellis was not.present atthis proceeding because he. refused to. be. transported
from the State·. Correctional Institution. The court shall now hnefly recount the factual
background of this case.
5
··········-·-···········---------- ·--------------------
FACTUAL .BACKGROUND
Ellis was convicted. of; inter alia, first degree homicide for ·shooting and killing
Stephen LaMorit Hackneyr'Hackney") in the early morning hoursof Jul.{13, 2013. The
murder occurred in the. course of a robbery/home invasion at ·1·24. Walnut Street in the
City of Altoona, Pennsylvania ("the apartment"), Thetrial testimony .revealed that Ellis's
co-defendants in thi$ armed robbery-turned- homicide were Taylor Gtiffith fGriffith") and
Qasim Green t'Green'). The. homicide remained unsolved for .epproxlmately four (4)
years. One of the Commonwealth's key witnesses was Griffith, ·who ·testified that she
assisted in whats he indicated she assumed was going to be only a robbery 9f Hackney,
She testified that she witnessed Ellis burst through Hackney's bedroom door and fire
three rounds from a semiautomatic pistol at Hackney, who collapsed to the floor. One
shot penetrated the outer wan and went into the house next door, Griffith also testified
that upon Hackney co11a-psing to the floor, bleeding, Ellis turnedthe gun on her arid stated,
"run
. ,.. bitch."
. . .
Another cornerstone of the Oornrnonwealth's case was testimony from Travis
Denny, an individual.who testified that he was cellmates with EJlis at SCI Huntingdon. He
.testified that he and. Ellls we.re watching the television show "The First 481', when Ellis told
him that he shotsomebody three times and never got caught Ellis tolo Denny that the
person he shot was narnec Steve, Ellis further told Denny he. shotSteve Jor money, and
that he ran outthe backdcor of the house and dropped money as he ran. He testified
that he met Stevethrouqh his.girlfriend Taylor. The testimony.and exhibits attrial revealed
that Stephen Hackney was shot, three shots were flred, and moneywas found on the
6
stairs and the, floor of the house where Hackney was killed, and that the defendant's
girlfriend was Taylor -Griffith.
Griffith is the daughter of the Blair County Prothonotary/C1e� of Courts, Robih
Patton. Atiury selection the court disclosed. this relationship, and asked the prospective
jurors whether U. would have any impact on their ability to be- fair and impartial jurors in
the case. There· was no response from the prospective jurors· to the court's question, and
no further inquiries made by defense counsel.
As noted previously, Hackney was killed July 1� •. 2013, One of the early
investigators in the case- was former Altoona police detective Matthew Starr, Who. after
the bulk of theinvestiqafiertwas .convicted offraud on an unrelated matter. EUis at no time
called or attempted-to call. former Detective Starr to the witness.stand before trial to raise
an issue relative to. Franks. v, Delaware, 438. U.S. 154 (1976).
Ellis made a number of phone calls from prison, which-were recorded and used
. . .
�gainst him at trial by the Commonwealth. Before trial Ellis requested that these be
suppressed orllmlted. Thecourt denied this motion inan order filed of record October26,
.2018; wlthoutprejudice to Ellis. The record reflects that Enis never renewed this arqumen]
or supplanted it ·with the· court. Further, during the fourth. day of trial, when the
.ComrnonwealJh-soughtt.o·:Ph='Y portions of therecorded telephone calls between Ellis and
Griffith and. Ellis and a Jarell .Smith, counsel for Ellis requested that the .entire telephone
call, including the portionofthe call that indica.ted thatitwas made from prison, be played
for the jury. That call indicated a discussion abouta cell phone drt>ppe.d b.y Green. When
told that the police had found the phone and thatthey believ_ed it would lead them to the
killer, Ellis said, "tt'soverfor me; dog-I know he's going to.breatne."
7
Commonwealth Atty. Gen. Agent Thomas Moore ·was called by the
Commonwealth ·to· -aid the. Jury in understanding the vernacular .in which the defendant
and. ccidefendants .spoke arid the slang they used in their communication.. He explained
that 'breathe" meant to tes:tify against someone. The Cornmonwealth provided written
notice ofAgent.Moore'.s testimony on April 18, 2018. Attrial, after the commonwealth
conducted an examination regarding agent Moore's expert qualifications and moved for
the court to recoqnize him as an expert, counsel for Ellis. was. g:iven. an opportunity to
cross-examine .the witness. Ccunsel accepted the witness as an expert.
EIHs'.s. conduct prior to ttial included mlsconduct at the Blair County prison, and
threats again$t"pris.onpersonnel and codefendant Griffith. His .attitude before the court in
pretrial proceedinqs led the .court to specifically warn h_im that his conduct would
determine whether he was shackled for Qr presentat various court proceedings. Because
of his actions; he was .shackled during jury selection and at trial, The record of jury
selection does· not demonstrate that the jurors viewed restraints- on Ellis at jury selection.
It is not contested that restraints were invisible during the. trial.
Part of the Commonwealth's case included evidence: illustrated _oy the Cell Hawk
technology
. that showed cellular
. telephone towers receiving pings ailegedly from cell
phones identified:as bein9 .associated with a familymember of Ellis-and· associated with
Griffith, and which corroborated Griffith's account that after the: murder she and Ellis fled
to Philadelphia_. The Ce!I Hawk technology was challenged by both· Green and by Ellis
as being scientifically unreliable and was the subject of.extertsive testimony on August
20, 2018.
8
... ··············--··-····-··---------------
Robert Donaldson, Esquire, filed an Qmhib�s Pretrial Motion for relief on behalf of
Ellis on March 1=9, -20.18. After he was discharged by Ellis>as counsel, on October 1, 201 a,
Ellis filed .an Omnibus Pretrial Motion for relief as a self- represented li_tigant which was
allowed by the court even though it was untimely. Attorney Donaldson'-$ Omnibus Pretrial
Motion was. in thenature .of a writ of habeas corpus and a rnotionforhls client to be able
to have hard copiesof discovery documents prior to trial. Atheari_ng held on the Omnibus
pretrial Motion on March Z:3", 201.8 Atty. Donaldson asserted 'that" he was going to file
additional motions, one having to do with the software called Cell. Hawk, and a motion for
change of venue. Eilis's Omnibus Pretrial Motion contained a Motion to Dismiss all
Charges; a Motion-for-Change of Venue and Ven ire; a Motion torseverance, a Motion to
Suppress: Prison. Phone Call Recordings and Prison Inmate f.,fa,VLetters,. a Motion to
Suppress: Warrant for Sprint Cellphone#{267)257-3995 and/or Procedural and
Juris.dictional Defects dated 1/17/2014, a Motion to Suppress: Procedural and
Jurisdictional Defects S.eart:hWarrarit7/22/2013:, a ry1otion toSuppressandzor Excluded
(sic) Additional. Physical Evidence or Materials at Trial.. a Motion for ln Forma Pauperis
Status:, a Molion for Appointment of Experts'. and a Motion for Appointment of
Investigator. Separately, at various hearings., Ellis also joihe.d g_en·erally in motions by
codefendant Green about the scientific reliability of the .Cell Hawk technology proffered
by the Oommonweatth ..
There was: no Motion to Suppress Ellis's geographic location throuqh' the use of
his cell phone of .cell .tower location information contained .in Attorney Donaldson's
Omnibus Pretrfal Motion. He did join in a suppression motion made PY Attorney Dickey
to suppress Green's Samsung cell phone found outside Hackney's resfdence. Transcript
9
. of Oral Argument, 06/22118, p�2. Eiiis's pro se Omnibus Pretrial Motion included a
''Motion to Suppress: Warrant for Sprint Cellphone #(267)257-399�' and/or Procedural
and Jurisdictional Defects dated 1/17/2014". ln it, he asserted. that the .Commonwealth
sought and requested the court to issue cm· order directing the disclosure of records
concerning electronic communicauon services provided in section :0743 of the
Wiretapping and Electroh.ic Surveillance Control Act, 1.8 Pa.C .S.:§ 5743. He also asserted
that police officer Matthew S. Starr sought permission and/or authorityto obtain a search
warrant for the contents of (electronic information stored within) a Sprint. cell phone With
the number 267"'2�7-·3_995. The court can find no record that such search warrantwas
sought, and the.Oommonwealth asserts thatone was not obtained. for telephone number
267-257�3995,2.
Ellis also· asserted that the. search warrant lacked the siqnature of issuing authority
and was procedurally defective. In his motion, .although he used the number 267...;.257-
3995 in its caption, he identified the cell phone he was talking about-as a Sprint HTC
cellular phone (mooel.PG 8.6100), fee id, ntn8pg86100, meid hex a10,00017 bdf 44, 5/h16.
nh276$9, with the-contents to be searched to include, but not belimlted to, calls received,
calls made, missed calls, contacts Within phone, text messages received, but not limited
to, vclcemall. videos.downloads, emails and pictures stored within. He stated thata copy
of the applicable. search Warrant w�s attached to his motion and made ·part thereof, as
Exhibit C. He requested a hearing pursuant to. Franks vDelaware, 438 .U.S.. 154 (1978),
alleging that Matthew S: Starr was subsequently terminated from the Altoona Police
Department for ·fraud and dishonesty. He requested the court to suppress ariy and all
2 At the motions h·�arjng.o_n August 7,, 2018, Ellis stated thatthe phone subscriber ofthat number was Nafeesah
Ellis.
10
·············----·-------------------------------
evidence of the. Sprint cell phone dated 1117/14. The affidavit of probable cause of the
search warrant attached to the defendant's motion as exhibit C reveals thatthe Sprint
HTC cellular phone model PG 8$100,. with the other identifying numbers used by
defendant in his motion; was found on the dresser in the victim's bedroom. The affidavit
also revealed that the cell phone has been in the custody of the Altoona .Police
Department evidence room since the time of the incident.
At the time the motion was· filed, Ellis, who had been a pro· se litfg_ant, was
represented by Attorney Ferr, who had been· appointed to represent .him on September
26, 2018. Reg_ardless of whether this Omnibus Pretrial Motion for Relief thus cohstitµted
hybrid representation.Ellls did not raise in his motion any request-to suppress lnformatiori
about the location of this cell phone. His final requested relief was for the. court to
"suppress any and all evidence .seized pursuanUo the search-warrant and/or' procedural
jurisdictional defects··of the Sprint cell phone.dated 1/17114."
Ellis also filed a Motion to Suppress and/or Excluded {sic} Additional Physical
Evidence or Materials at Trial. In item A he sought to suppress any $nd ·aH prior bad acts
of defendant Ellis·; in item ·B he sought to suppress any anq all prior criminal ccnvlctlons:
in item C. hesouqhl to suppress the "geographical origins of Defend.ant Ellis", He went
on to list with sp�cificity other items. and witnesses' statements and telephone .calls he
Wi$hed to have suppressed. By the plain reading of item C aslisted, the court took it to.
mean where hewas born or originally from, as he was hot originally from Blair County,
but from the Cit{of Philadelphia. No request to suppress his geographic Jocation or that
of his cell phone is lncluded in this section of his motion.
11
In a hearing on the Omnibi.rs Pretrial Motion held Octobers, 201t_ counsel for Ellis
mentioned the Carpenter case; After that hearing the court gave counsel twenty days to
submit a brief. Transcript of Motions in Matter;.. 10/09118, p. 28i II. 22-25. Briefs wete
subrnitted.and the court.rendered .an Opinion and Order on December 14, 2018. Notably
absent from the arguments is any mention of suppressing .evidence pursuant to
Carpenter.
At trial, the; Commonwealth introduced numerous other- fact witnesses besides
Griffith and Denny; .and also expert witnesses, that established its theory of the case of
Ellis as the murderer. Also during the trial, Ellis unsuccessfully attempted. to demonstrate
that the lnvestlqatlon was mcomplete and thatthere was a party-going on downstairs at
the decedent's residence, as evidenced by the numerous shoes in the living room, the
Newport cigarettes throughout the house, the many alcohol bottles throughout the house;
and marijuana _i_h the home as well, and that it could have been someone else that
committed the murder. The jury rejected this theory.
We shall now address eaC.h of the issues raised by Ellis in his post-sentence motion
·seriatim.�
1. There was noactual conflict nor any appearance of impropriety such that �he
court should have rec used itself or the remainder of the.. Bl;lir County Bench.
The court fµrther has no power or authority to force the District Attorney's
Offlceto recuse itself from a ease based on a mere- accusation of a conflict
of interest.
The applicable legal standard fora motien seeking recusal .of a judge is as follows:
We recognize thatour trial judges are honorable, fair and competent, and
although we employ an abuse of discretion standard, we· do so recognizing
that the judge.- himself is best qualified to ga1,.1ge .his ability to preside
impartially. A_ trial judge should grant the motion to recuse o·n1y if-a do.ubt
exists as: to his or her ability to preside. impartially or if- lmpartiafity can .be
3 The courthas.rnerelysubstltuted numbers.for .letters.
12
reas.oh-�bly questioned. In order to prevail on a motion forrecusal, the party
seeking ·recusal ·is- required to produce evidence estabiishfog· bias, prejudice
or unfalrness- which raises a substantial doubt as- to the· jurist's apility to
presldelmoartially.
Interest of L V.,. 209 A:3d 399, 415 (Pa. Super. 2019) (internal citations arn;f quotation
marks omitted). In seekinq to disqtJalify a prosecutor, a defendant.must show more than
mere allegations of a conflict of interest. Commonwealth v. 1'i1ulholland, .702 A.2d 1027;
1037 (Pa. 1997)·. Ellis·. c:ontends that because Griffith is the daughter" of the elected
Prothonotaiy of BlairCounty, Robin G. Patton ("Patton'')4,the entire.bench ofBlair County
and the District Attorney's office should not have participated in his trial. Before jury
selection, the trial. court placed on the.record thattt had no sod�I and rnlnimal professional
contacts with the elected Prothonotary, arid made a determination that the court could
preside impartialty over the matter: At jury selection the court dlsclosed the relationship
between Griffith and, the.eleeted Prothonotary to the prospective jurors.. N.T., 01/07/19,
pp, 69-70. There was no response from the prospective jurors to: the. court's question
regarding this relationship .and whether it would affect jurors.' :ability to be fair, ancl no
further inquiries made· by defense counsel. Id. Ellis points lo no ·other mention of this
relationship in the actual trial record.
The terms of Griffith's plea agreement were freely admitted. b:y the Commonwealth
in this case. Ellis also readily concedes that he is not.leveling any· accusations of this
court beiri9. "biased. prejudiced or unfair." Moreover, he citesto casesthat are completely
inapposite. See Commonwealth v. Eskridge, 604 A.2d 700- (Pa, 1"992.};. Comm. ex rel.
Atmorv. Armor; 398 A2d:1°73 (Pa. Super: .1979).
4 R.qbin G. Patt.Ori was not a \,yitne�s at trial.
13
In short, despit� quoting at length from the judicial canons and cases that describe
prosecutors as "stewards of Justice;" Ellis provides no legal authoiify that. stands for the
proposition that when a bloloqlca: relative ofa county row officer is _qalle_d as a witness in
a case, the bench and district attorney of that county must remove themselves from the
case. Nor does he pointto any decision rendered by the court· that was· improperly based
on bias, prejudiceor unfairness:
Moreover; the court heard extensive testimony from First Deputy Prothonotary
Vicki Claar atthe hearing on August 7, 2018: . Notes .of Testim'ony on Omnibus. Pre--Trial
Motions,. 8/7/18, pp, 27-34, Ms. Claar testified that the Prothcnotary's office took steps
to insulate Patton from .any involvement in issues. related to Griffith. lg. Finally, Ellis
offers no substanfive evidence, nor even an.y allegation, thatthedistrtot attorney's office
had a conflict" of interest. arising out of the relationship between GJiffith and Patton.
Finding no support in·the record nor in the law for Ellis.'s claims in hisflrst issue, the court
shall deny the same. 5
2. The, court properly denied Elli$'s Motion to Suppress:_.evidence.
The courtnoteejhatwlth respect.to this. issue we rely primarily on our prior Opinion
and Order entered of record on December 28, 201.8. Additionally, . as argued by the
Commonwealth ih its rnernorand um of law'to the court; E.llis at no tim.e .caned or attempted
to 'Call former Detective. Matthew Starr to the stand to raise an issue relative to Franks v. ·
Delaware, 438 U.S. t54 (1978). The Pennsylvania Supreme Court has· explained the
holding in Franks:
The United $tales· Supreme Court recognized the right- to ch-allenge an
affidavit's· veracity in Franks ii. Delaware,[. .. ] which addressed whether a
5 The court also noJ.es-that:itent.ered an.order on November 27� 2018 denving.the motion for racusal and
indicating that the court had no relationshlp with Patton that would create aruappearance-cf impropriety.
14.
defendanthas the. right, under the Fourth and Fourteenth· Amendments, to
.challenge the truthfulness of factual averments in an -affidavit of probable
cause. The Court held where the defendant makes a substantial preliminary
showing the· affiant knowingly and intentionally, or with reckless disregard
for the. · truth, included a false statement in the affidavit, the Fourth
Amendment. requires a hearing be. held at the defendant's request, The
Court emphastzed the defendant's attack on the affidavit must be 'more
than conclusory-and must be supported by more than a mere oes"ire to cross
examine [ ]':· the defendant must allege. deliberate falseh.poo or reckless
dis regard for the, truth, accompanied by an offer of proof.-lf the: defendant
meets thesereq ulrernents, but the remainder ofthe affidavit's. content is still
sufficient to establish probable cause, no hearing is required: If the
affidavlt's remaining .content is .insufficient, a hearing is held, .at which the
defendant must establish, by a preponderance of tlie· evidence, the
allegafio.n :,of perjury or reckless. disregard. If he meets this burden, the
affidavit's false material is disregarded; if its remaining content ls lnsufflclent
to establish probable cause, the search warrant is voided, .and the fruits
thereof are excluded. ·
Commpnwealth v. James, $9 A.3d H30, 188 (Pa. 2013) (internal citations omitted), Ellis
still points to no "deliberate falsehood or reckless disregard for the .truth" nor any offer of
proof pursuant lo Franks. Ell[s's bald-faced assertion is that Petec\ive· $far.r committed a
fraud in an unrelated matter. so therefore; he committed afraud in this case. Other than
thatfaulty lo�ici. Ellis off.ers no substantive argument as to how-the court erred in denying
his motion to supptess. J:\Gcordinglyi his motion is denied.
3-, There was no Bra·dy nor other discovery violation regarding the testimony of
Kelsi Bergmann.
In the landmark case.of Brady v. Maryland, 373 U.S. 83; ·10.L. Ed .. ·:2d 215 (1963),
the United States -Sµpreme Court held that "the suppression by the prosecution pf
evidence favorableto an accused upon request violates.due.precess where the evidence
is material either to.guiltor to punishment, irrespective of the good .faith or bad faith of the
prosecution." Id. at 8.7. The.Pennsytvania Supreme Court has held:
[T]o provea Brady vlolation.the defendanthas the burden.otdemonstratinq
that: "(.1) the prosecutor has suppressed evidence; (2) the evidence,
15
whether.exculpatory or impeaching, is helpful to the defendant, and (3) the
suppression prejudiced the defendant," Prejudice is demonstratec where
the evidence suppressed is material to guilt or innocence, Fµrther,
"[fJavorable evidence is material, and constitutional .error results-from its.
suppression bythe government, if there is a reeeonableprobaollltythat, had
the evidence. beeri disclosed to the defense, the result ofttle proceeding
would have been:different. A reasonable probability is a probability s.ufficlent
to undermine confidence in the outcome,"
Commonwealth v. Koeh/er,_-36A.3d 1.21; 133 (Pa. 2012) (internal citations omitted). Ellis
argues that the Commonwealth-failed to disclose the 'untruthtulnsss" of Bergmann's
testimony. Be:rgmart_n was not·called as a witness by the Gomtnonwealth nor was she
called by Ellis. As hated by the Commonwealth, any discrepancy in Bergmanh's
statements could 'have been demonstrated by Ellis during his. case-in-chief. For these
reasons, no discovery violation occurred and no relief is clue. This motion is denied.
4. The court did not err in refusing to limitot. suppress the interception of his
phone records .and written communications obtained while he was
incarcerated, Qor· .dld it err in allowing them to be played for·the jury. N<>
objection_s wereralsed at trial to these recordings.
Ellis presents a boilerplate argument relative to his right to be free from
unreasonsble-searches and seizures iri support of his contention that the content of his
prison calls should have been suppressed. However, as correctly pointed out by the
Comrnonwealttr, 'the court specified in its Order dated octcbers, 2'01 $ and filed of record
on October 26,. 20·18· .that the court denied this motion 'without prejudice to Ems.
Specifically the court indicated that the motion to suppress was denied "without prejudice
to the Defendants ability to raise an individual item of correspondence and establish an
expectation of privacy, su.ch that the matter should be litigated:" ORDER, 10/9/18,. The
record reflects that Ellis never renewed this argument nor supplemented it with the court.
Therefore, the court finds this issue waived at this stage of -the proceedings. Ellis never
16
raised or attempted to articulate any reasonable expectation of privacy in his.
communications from ', prison, either by mail or by telephone. See .Commonwealth v.
Hawkins,. 718 A2a ·265.1 268 n;3 (Pa. 1998) (it is "an essential element" for a defendant
seeking suppression to satisfy the burden of proving that he or she has a legitimate
expectation of prfvacy): Commonwealth v. Caban, 60 A3d 1:201 1.2.6 (Pa. Super. 2012),
appeal denied, 79 A.3d '1097 (Pa. 2013) (To prevail in a challenge to :the search and
seizure, [ ... ] a gefendant accused of a possessory crime must O ·estat:.>Ush, as a threshold
matter, a legally cogniz.able expectation of privacy in the area se.arche�t:")6
Moreover, the Pennsylvania Superior Court has held that a prisoner has no
reasonable expectation .of privacy in his non-privileged mail. Commonwealth v. Moore,
928 A.2d 1092,.1102 (Pa Super. 2007), In Commonwealth v, Prisk,. 13 A.3d 526, (Pa.
Super. 2011)1 the Superior Court held that an inmate did not have a reasonable
expectation of privacy in conversations that he had in a prison visitation room. Id. at 532.
In Commonwealth v. Byrd, the Superior Court held that the evidence ln th�t case
(including a. wa.rning that the calls were recorded played during the conversation)
demonstrated that defendant consented to recording of jailhouse telephonic
conversations .wit� visitors, under the mutual consent exception to the ·wire.tap Act ki.,
t85A.3d 1015, 1.019 (P�. s:uper ..2018). In regards toa telephone-call between an inmate
�nd his parents, the Pennsylvania Supreme Court in Commonwealth v.. Beumnemmers
observed:
Simply stated, there is no basis to conclude that the privacy rights of
or
Appellant hisparents werelnfrinqed when their March 2, 2-001 telephone
conversation wasrecorded. These individuals were actually awarethat.their
6The.Cabon case was overruled.on other grounds. see tn re L.J,, 79 A.3d 1073 (Pei.: 2013) (prospectively holding that
an appellate courtrevtews the suppression �videri.c.e and does not also.consider trial evl9ence in determlnlngthe
correctness of a suppresslon court ruling).
telephone conversation was being or could be intercepted and recorded by
prison authorities, ·
Commonwealth
. . v.. Beumnemmers, 960 A.2d 59,79. (Pa. 2008),
The court permitted Ellis to ralse the issue of the intercepted communications and
not only did he-faH·to do -$0. or attemptto litigate the issue, he· never specifically objected
to the admission of the same. The Commonwealth offered to redact the calls of.certain
information r$garding_ Eiiis's incarceration. Notes of Testimony, 01i28f19, pp. 277�279.
There was no objecton by Ellis When the Commonwealth's witness, Travis Denny
("Denny"); testified that he was incarcerated with Ellis at SCI Huntingdon. Notes of
Testimony, 01129/1�; pp. 76.;80. The Commonwealth clearly put on the record that this
informatton was part of Denny's 'testimony and no objection was lodged .at any time prior
to Denny·� testimony. Jg., 01/29/19, pp. 47�5.0: There waa.no objection by Ellis-when
the Cornrnonwealth's witness, Lieutenant Anthony Eberling·, testified that Ellis was
incarcerated at SCI Huntingdon in the summer of 2017. Note·s of Testimony, 1/3.0/19,
p. 10, IL 5�10. Nor wasthere any objection to the testimony of Corrections Officer Joseph
Watt regarding Etlis's mail being scrutinized by the Department of Corrections. N.T.,
1/30/19, pp. 27-32. There was no objection to the testimony-at Corrections Officer Travis
Weakland that dealtwiththe same topic.. N.T .., 1/30/19, pp, 33-·3·s-. the Commonwealth
asked the defense, the· day before calling the.se witnesses, if Ellis accepted the
stipulation re�ardihg_ the exhibits entered through these corrections officers regarding
Ellis;s mail moriitbnrig by the Department ofCorrections. N.T., 1/29/19, p. 137, 11.16�25.
Counsel for Ellis indlcated he consulted With E:llis and replied,_ ·"We: have- discussed them
briefly and they are .acceptable, Your Honor." Id., p. 138_. 1-6: As argued JJY the
Commonwealth, Ellis's .objection at trial to the. introduction of the letters written by him
18
·····-·····-········-·--···-········-···-·---·-·-·····-····-----·----··-·------------------------------
from prison was "based upon the motion previously made." N.T., 1/3_0/19, p, 106, IL 14-
25.
There was no Indtcatton whether this was a reference. .to the suppresslon motion
filed by Ellis and subject to the court's ruling in its October 9, 20·19 order. and there was
no arqument made relative to the objection. jg. During the fourth day of trial, when the.
Commonwealth sought to play portions of the recorded telephone prison calls between
Ellis and .Griffith and between Ellis and Jarell Smith, this exchange occurred:
Couns.el for the Commonwealth: ft is my understanding forthe record
we're playing_ the entire call at the request of Aito.rney Farr with no
redactions first.
Counsel fb.r Eiiis: That's accurate, thank you.
N.T.. 1/31/1·9, ·p·..61, 'fr. 18-21. Clearly the record supports the Commonwealth's
oontention that it was Elli�'s desire to have the cans· played in ·tf,ek entirety Without
redaction.
For all of the .above stated reasons,
. Ellis has not established
. a basis fat the court
to.grant any relief: The motion is denied.
5 .. There ls no mer,t to Ellis'.$ motion regarding the commcnwealth's witness
Supervisc>ty· Agent Thomas Moore ("Agent Moore'}
Ellis arg.ues tfiatthe·Commonwealth "violated the mandates of Brady v. Maryland'
when it.failed todisclose its intentions, before cornmerrcementet thetrlal..of calling Agent
Moore to testifyas. art expert regarding certain language and words purportedly used by
the Pefitioner/Oefendant," ELLIS'$ BRiEF IN SUPPORT OF MOTfON FOR RECO.�SlDERATION OF
SENTENCE, ARR.EST OF _JUDGMENT, AND A NEW TRIAL, 8/1.9119,. 1I e (unpaqinated), At trial,
19
··-·-···-·---·-·--··-···-·---·--····-·-------------------------------------
after the Commonwealth conducted an examination regarding_ Agent· Moore's expert
qualiflcatlons and moved for the court to recognize him as .an expert, Eiiis's counsel
conducted cross exatnmation on this subject. KT., 1/31/19, pp. 69-70.. Defense counsel
then indicated to the court, "I. have no further questions. I w.ill [accept] him as an expert
he's been around. Thank· you Your Honor." N.T., 1/31/19, p. 70,. IL 23�25 (homophone
inserted)? Notably absentfrom the record is any indication of surprise. any objection to
Ageht Moore befng: recognized as an expert or.any mention that Ellis was.unaware ofthis
Witness'. To the. contrary, the defense acceded to· the Commonwealth's request to
recognize Agent Moorees a.wltness and added, "he's beenaround." There is no means
by which the court can.nowrule on this issue.after the jury has rendered a verdict and
there appears a·bsolu.te_ly.np evidence in the record that Ellis was unaware of this witness
orwhat he was g·oing_ to. presentto the jury� The Commonwealth provided written notice
of Agerif Moore's. testimony oh April 18·,. 2.018.. COMMONWEALTH's· NbTiQ.E OF EXPERT
TESTIMONY, 04/1:8/t8, p. 8 ,r 11, 12. The motion is denied.
6. Thereis noevidence of record thafany member of.the jury pool viewed Ell.is
in restralnts, . .
Ellis points to no portion of the record that demonstrates that any_ member of the
ji.Jry pool was able tosee.his restraints at jury selection on.January 7,, 201-9. The inclication
that the court made that Ts quoted by· Elli� as demonstrative. that hls "shackles" could
actually be viewed Is disingenuous because the record is clear thatthe quote on page
46 occurred at.sldebar. Notes to Testimony at Jury Selection, .O.i/07/19, p. 48, II. 18-25.
7 The court notes. that the word "except" appears in the transcript. The court believes when :the. context of the
record is viewed the word thatshould.appear is "accept." These two words sound thesame when spoken but have
decidedly different meanings.
20
Rather, the court took the ..opportunity of a break to insure that it was not possible for a
prospective Juror to � the restraints: Notably, juror number 18 wh·en questioned by
Eiiis's counsel if thejuror noticed anything about Ellis this Juror repiied,_ "Notoffhand, no."
N.T., 01/07/19, p·.·:�6. II: 16-22. The court gave both defense counsel the opportunity to
demonstrate on the recordthat thejurors could see Eilis's restraints.. N.T., 01/07/19, p.
20, II. 3-:20. There.simply is nothing in the record that demonstrates that the jurors viewed
restraints on Et!Is at jury selection. Moreover, even if a prospective juror did notice the
restraints it is clearthat the:jury at some point became aware that Ellis was incarcerated.
As previously lndicated, Ellis either did not object to this fact bein_g presented to the jury
or he indicated his desireto have un .. redacted prison calls presented to the jury. The
Pennsylvania Sµp·reme Court has observed:
We observe .at the outset that it is well-settled under common jaw .and
constitutionally as incident to a fair trial without prejudlcetnat defendants-
appear free-from shackles or other physical restraints. The sight of shackles
and gags,. moreover, constitutes an affront to the very- dignity.. and decorum
of judicial proceedings. While there exists a legal presumption .aqainstthe
necessity of physical restraint of an accused in the- courtroom, there are
exceptional circumstances when the employment of such techniques are
an .acceptabte practice where such "restraint [is] reasonably ·ne:ce�sa.ry to
maintain· order." Exceptional Circumstances often have beenfound ln sister
jurisdictions as well where the defendant disrupts the proceedings, where
there is evident. danger of escape, and where the court has. reason to.
believe: that an unrestrained defendant mighfattack others.
Commonwealth v.: Jasper, e1 O.A.2d 949, 955 (Pa. 1992). The Commonwealth aptly cites
to the considerations the court encouhtered with Ellis·'s pre-fria] behavior,
COMMONWEALT.H $ MEMORANDUM IN RESPONSE TO DEFENDANT'S
1
POST ,$ENTENCE MOTIONS,
8/27/19, p, 13--1"4 .. AU =of this behavior factored into the court's thinking with regard to
Ellis'.s. potential to disrupt the proceedings. Still, the court believed it-attempted to balance
the need to rnainta in order and safety ln the courtroom with Eilis's rights to not .appear
21
before the jury in· restraints. There is no .indication that he was viewed either at trial or
durihgjury selectiorr in restraints. Nothing prevented counsel from a_ski.ng or requesting
the court to ask at .sidebar whether any other juror noticed anything about Ellis· such as
restraints. Without such an indication .in the record, no relief rs due -. Even ass.urning,
arguendo, the· jury or ·pro�pective jurors did view Ellis in restraints, such- an occurrence
did not preiudieeEllis where it was conceded by the defense·that hewas incarcerated
prior to trial, Furthermore, this court took affirmative steps to insure that any restraints
would not be vislble.to the prospective jury pool and the empaneled. jury. The motion is
denied.
7. There is no merit to Eilis's contention that the Commonwealth's w.itness
Ashley �rupaker was unknown to. the.defense and no objection lodged of
record to her testimony. · ·· ·
As is readily conceded by Ellis, he did not object to the· Commonwealth calling
Ashley Brubaker as.a witness. N.T., 01/29/19, pp. 138.;.139 . .A thorough offer of proof
was provided of her proposed testimony by the Commonwealth. Id .. After this offer of
proof, Ellis. ralsed no objection, did not indicate surprise and otherwise .offered no legal
authority to prevent hertestlmony. Id. Simply put there is nothih_g preserved in the record
for the court .to analyze. If the defense was surprised by the: Commonwealth's
presentation of-this Witness the time to raise such an objection was a:t trial, not after the
verdict was rendered.
The Commonwealth maintains that there was no formal interview conducted ofthis
witness prior to January.zs, 2019. If Ellis disputed this, he had the opportunity to raise if
via cross examination, Jn fact, Ellls's counsel did inquire into wh�n this· witness first.spoke
to police and her answer was consistent with the Commonwealth's contention thatshe
22
.. -·· . ·- ··---·----····-·-·----····- ·----------------------
spoke to them on the· nighfaf the homlclde. N.T;, 01/29/19, p.-, rse-rsa. Additionally; the
defense extensivelycross examined this witness relative to text me�ages on the night .
.of the homicide. between. her and Ell.is. N. T., o 1 /29/19, pp. 159:-·16'3. There is no merit to
thls.motion and the. court· denies relief.
8. The court's· refusal to allow Ellis to cross-exarnlne the Commonwealth's
Witness; D�m.ny, with _cl .dccument that. wa:s not authored by him. was
compelled ·by·the P�nnsylvania Rules of Evidence·. and appiicable law.
Ellis cites to the _general applicability and foundational. lawertshrined inboth the
United States Constitution and the Constitution of the Commonwealth of Pennsylvania.
DEFENDANT'S BRIEF, 8/1�/1�. ,r h {unpaginated). There was, however, no dehia.l ofthe
rightto confrontation iri this trial. As the Pennsylvania Superior Court has. observed:
The. C9nfrontation. Clause in the Sixth Amendment to the United States
Constitution provides that all criminal defendants enjoy·"the right-to confront
and cross-examine adverse witnesses," Moreover, "the- exposure of a
witness' motlvatlon in testifying is a proper and important 'function of the
constitutionaily-protected right of cross-examination;" Although the right of
cross-examination is :a fundamental right, ifis not absc;>I�.
Commonwealth \i. Rosser; 135 A.3d 1077; 1087-1088 (cltations omitted, emphasis
supplied). hi Rosser; the Superior Court described the two-step inquiry regarding a
violation of the: ri_ght of confrontation when the trial court limits: cross-examination that an
appellate court must undertake:
First, we inquire whether the limitation prejudiced the examination of that
particular witness. In other words, absent the limitation, w.ou_ld thejury have
received a "s.ig_nifieantly different impression" of .the witness's credibility?
Second, if 'there was error, we must determine whether it was harmless
a
beyond reasonable doubt; itso, reversal is not warranted.
Rosser, at 1088 (citations .omitted). A review of the trial transcript demonstrates that
counsel for Ellis attacked Denny's motivation for testifying. N.T., 01/29/19, pp. 86'"95.
The court put absolutely .no limitatioh on this Une of questioning anc Denny readily
23
admitted that his rnotivationfor testifying was that.hewanted to receive "leniency." N.T.,
01/29/19, p. 95_; IL �12.. Penny was portrayed by this crcss-examinatlon as being
motivated by his desire to have hi$ sentence shortened. Theretore, there was not a
significantly diff�r�nt- impression presented to the jury when the. court prevented defense
counsel from using-a writi.n_g not authored by the witness to.impeach him.
"It is lonq.settled that a prior inconsistent statement may be: used ·to impeach a
Witness:' Commonw({Jalth v Brown, 448.A.2d 1097, 1102 (Pa .. Super. 1982) (citation
omitted). "In order to· de> so, there must be evidence that the statement was made or
adopted by the witness Whose credibility is being impeached.J.' Id., (emphasis supplied)
"lrnpeachment throlig._h .extnnslc evidence is not generally allowed on matters collateral to
the issues at trial." -Commonwealth V; Bailey, 469 A.2d 249, 264-26.s:·(Pa. Super. 1983).
The Superior Court has. discussed the. proper methods for impe.aching a. witness;
The credibility of a. witness may be impeached (1) by showin:g that on a prior
.occasion he made a statement, either oral or written, that is inconsistent
with his. present testimony; (2) by competent evidence tending to show
bias, bad character-for truth and honesty, or defects in memory, perception
or capacity or ·(3} by the competent contradictory testimony ·of other
witnesses wh0$€ version of the facts differs from that of the wifoes_s being
impeached_.. ·
The first ofthese three methods otimpeacnment is obviously-inapplicable,
for it is axiomatic that when attempting to discredit a· witness'
testimony by means of a prior inconsistent statement, the· ·s_tate,ment
must have been. made or adopted by the witness whose credibility is
being imp�a'ched.
Commonwealth v. Baez, 431 A.2d 909, 912 {Pa. 1981) (emphasis supplied). When Ellis
attempted to enter a letter written by Denny's girlfriend to Denny's attorney, the
Commonwealth objected, �r.guing the identity of the author of this letter was not relevant
24
and that D.enny was not the author ofit. N;T., 01/29/19, pp. $7.;89. This exchange then
followed at sidebar:
The Court: So how can this witness do anything except speculate about
the rnotlves of the person who wrote the letter?
Counsel for Ellis: I-am just going to. ask if he talked to his girlfriend about
this. If he talked to her and had requested she write a letter to his-attorney
seeking leniency,
Counsel for Commonwealth:. _ I don't object if he asks-
The Court: Butthen .at.that point yo4 still can't get into. the contents of the
letter..
Counsel fot Ellis:: He is talking about heroin.
The Court: Throuqh this witness. If you can find the girlfriend-and call her;
I am not.saying you couldn't .get it in that way, but I don't know-how you can
get it in throuqh this· witness properly.
N.T., 01/29/191 p. 9.0,_ II. 1-15. The court did not bar cross exarnlnation of Dennyregarding
his motivations to· testify and did not bar the admission of the letter. The court merely
lndicated.that.lt defense counsel conceded this letter was not aethored by Denny he could
notbe cross-examined re·garding the motivations of the person who did write it. The court
also left the possib_ility.-of tailing Denny's girlfriend open to the defense. Eilis did not call
her. The motion is denied,
9. By raising· the Issue for the first time in his post-sentence motion, Ellis-has
waived the . .challen_ge he now makes pursuant to Carpenter v, United State,s.
· Pennsylvania Rule of Criminal Procedure 581 states, 'in part;
-25
(A) The· defendant's attorney, or the defendant if unrepresented, may make a
motion to. the court to suppress any .evidence alleged ·to have been obtained in
violation ofthedetendarrt's ri9.hts. · ·
(B) Unless the· opportunity did not previously exist, or ·the interests of. justice
otherwise require, such. motion shall be made only after a case has been returned
to court and .shall be contained in the omnibus pretrial motion set forth in. Rule 578.
If timely motlon is not made. hereunder, the issue pf suppression .of such
evidence shall .be deemed to be waived.
Pa. Crim: R. p�5s·1 {A).: (B).(emphasis supplied). Ori October 1, 20.18,:Ellls filed a pro se8
Omnibus. Pre-Tri1:;1I Motion. No argumentorrnotion relative to thedecision in Carpente.r
v.. United $tatfJ$,.- U.S .. --. 138 $.Ct. 2206, 201 L. Ed. 2d 507 (2-0.18) with regard to
Eiiis's historical cell siteIocetion information ('1CSLI") was raisedIn this motion: At the
hearing on October 9, 20-18, counsel for Ellis mentioned the. Carpenter case, After that
hearing the courtqave counsel twenty days to submit a brief. ·Transcript of Motions in
Matter, 10/09/18, · p. 28, II. 22..25. Briefs were submitted and the court rendered ah
Opinion and Order on Dec.ember 14, 2018; Notably absent from the arguments is any
rnentlon of suppressingevidence pursuant to Carpenter. Moreove-r,.the written Omnibus
Pre-Trial Motion for relief is docketed as filed on October 1., 2018,. This fllihg as noted
below is after-the court appointed. Attorney Forr to represent Ellis. The .reeord reflects
based on the' testimony at trial that no objection to the mtroducton of this evidence was
made and the defense attempted to counter it with their own -expert rather than. exclude
it Therefore, .the. issue has. not been properly preserved arid it is waived, as further
demonstrated by tne analysis below:
8 The court notes that Ellis waived counsel. after a colloquy and was a self-representedllrigantfromapproximately
August 8, 2018t<:>-September 2p, 2018. On August 20, 2018, Elljs .asked to have the.court.appolnt counsel and the
court appointed R. Thomas,F_orr, Esquire, as counsel on September2�, 2018. onoctober..9, ·2018, Attorney Forr
argued on behalf of Ellis based enthe lssues.ralsed iri his Omnibus Pre-Tria! Mption.
26